' MUHAMMAD AYUB KHAN (MEMBER).---Arguments have been heard and record perused. We intend to dispose of all the aforesaid eight appeals by a single judgment recorded in appeal No, 719(R)/1998 titled Pervaiz Naseer v. PIAC and three others, containing all identical factual and legal points.
' APPEAL NO. 719 (R)/1998
2. The appellant having graduate qualification was offered appointment in pay Group-V as Passenger Service Officer in Pakistan International Airlines Corporation in Airport Services Department of the Corporation vide order dated 30-3-1995 with salary package and other terms and conditions detailed therein (copy of the order is available at pages-32 and 33) and thereafter he was posted at Islamabad with immediate effect vide order dated 24-4-1995 (P-34) with a direction to report to the Station Manager, Islamabad, for assignment of duties and the Competent Authority had been pleaded to confirm his services w,e,f, 20-4-1995 vide order dated 24-10-1995 (Annexure-H at Page-35 of the appeal file). The appellant reportedly continued working to the entire satisfaction of the Administration but on one good morning, as per scrutiny of his record, it transpired, that the appellant was appointed in an irregular manner way without invitation of the application through advertisement and thereafter selection merits was, according to the respondents. Void ab initio and, therefore, it was observed in the letter dated 20-3-1997 that: ' your services are terminated forthwith without any stigma. Since your termination is simplicitor, you will be entitled to apply for position as and when vacancy is advertised on the basis of your qualification and merits.
' You will be issued Service Certificate and paid your regal dues on submission of attached clearance certificate duly completed in all respects/return of the following PIA Property/documents:
(a) PIA Card;
(b) Apron Pass;
(c) Family Cards;
(d) Any other PIA document/property. This has the approval of competent authority".
(e) It is this letter which is impugned under this appeal. All it means that the appellant was terminated from service after having been confirmed and rendering 23 months' service without issuance of any Show cause Notice.
3. A perusal of the record indicates that the appellant filed writ petition No,682/97 along with CM which was admitted and as a result thereof the operation of the impugned order was suspended on 20-3-1997 but ultimately it was dismissed as withdrawn by the learned counsel, on 26-8-1998, vide documents available at Pages 36 to 41 of the file, and consequently the present service appeal was filed under section 6 read with section 2-A of the Service Tribunals Act, 1973, before this Tribunal on 8-9-1998. It is further to observe that the appellant by suspension of the order by the Honourable Lahore High Court, Rawalpindi Bench, Rawalpindi, continued in service till withdrawal of the writ Petition on 26-8-1998.
4. The PIAC has hotly contested the appeal by filing objections/parawise comments and according to the preliminary objections it was averred that the appellant got induction into employment of the respondents through exertion of extraneous influence and pressure and the induction was irregular, unjustified and hence in violation of the prescribed procedure laid down for employment under the Respondent-Corporation and that the appellant had never been its employee. It was also stated:
(a) That filing of the appeal under section 6 read with section 2-A of Service Tribunals Act, 1973, was incompetent and the proper section for doing the needful was section 4 of the said Act under which the appellant failed to file departmental appeal before filing service appeal directly in this Tribunal;
(b) that relation between the appellant and the respondent-PIAC being that of Master and Servant and that in the event of his termination from service a suit for damages in a Civil Court was competent and not an appeal for reinstatement in service; and
(c) that the appeal in its present form is also not maintainable having been filed under section 6 read with section 2-A of the Service Tribunals Act, 1973.
' However, on the factual side it is contended that the appellant was also confirmed due to exertion of pressure and ultimately he was terminated by order dated 20-3-1997 after reviewing his case with other appellants and consequently all the appellants were again taken back on duty with effect from 3-4-1997 due to suspension of their termination order by the Lahore High Court, Rawalpindi Bench, as a result of the Writ Petition No,682 of 1997 etc. But on vacation of the orders their removal orders temporarily withheld again ipso facto came into operation w,e,f, 20-3-1997 and in the concluding para.4 of the comments it was stated: "His relationship with the Respondent PIAC was severed finally on 16-3-1998."
5. It has been stated that the appellants' appointments' were irregular, without invitation of applications through advertisement and without competition on merits, hence void ab initio and the services were terminated forthwith without any stigma treating the termination as simplicitor and that they will be entitled to apply for position as and when vacancies are advertised on the basis of their qualifications and merits as per the impugned orders but it was stated before us by the learned counsel for all the appellants that the PIAC had never advertised any post right from 1978 till date and the respondents are appointing persons against vacant posts so much so that 128 persons/candidates were appointed in the year 1997-98 without advertising the posts in the press. Really it was a bold statement made at the Bar and it could not be denied or refuted by stand on behalf of the respondents. It is a fact that certain departments are considered as "Employment Exchanges" wherein "Specialized people" are inducted now and then. It does not stand to reason that to. Commit an irregularity and attribute the same to someone else. Every Civil Servant, irrespective of the rank and file, must work strictly in accordance with the dictates of law as warranted under the law and not otherwise. In the latter event he thereby renders himself to disciplinary action. In fact, wrong orders need not be followed. Authenticity is attached to lawful orders and not to an illegal order/direction and anybody who obeys an illegal order does so at his own risk and cost. Legally he cannot get protection under the law when he himself has violated the law, Law presumes that he has committed the illegality personally. According to the tradition of the holy prophet (p.b.u.h.). Reproduced below:--{{ARABIC TEXT}} {{URDU TEXT}} ' which can be interpreted that" obedience is to lawful orders and not to wrong orders."
6. It is a fact that all the appellants were terminated withouto any Show Cause Notice which is in total negation of the principle of audi alteram partem deeply imbeded/enshrined in the judicial pronouncements specially when one finds that:
(a) all the appellants appear to be competent and well qualified; and
(b) simultaneously were confirmed in their grades/status.
' It has become a practice/common fashion that the incumbents are inducted but later on terminated without assigning any reason, which practice amounting to adhocism is not desirable being not in the public interest as a whole. It not only destabilises simply the individual concerned but the society at large and ultimately this spiral, when continues, engulfs the country as a whole with no fruitful purpose. The Holy Prophet of Islam (p.b.u.h.) has ordained:{{ARABIC TEXT}} "(I have given you two things the Quran and the Sunnah if you hold them fast, you will never go astray)".
7. The learned counsel for the appellants has placed reliance on an unreported judgment of this Tribunal dated 25-7-1998 vide which the appeal of Dr. Muhammad Mazhar Naeem was accepted and according to the facts of this case the said appellant was appointed on 21-1-1996 in PIAC as Medical Officer in Pay Group-VI, confirmed as such with effect from the date of joining by order dated 24-9-1996 but thereafter without issuance of show Cause Notice, Charge Sheet or conduct of enquiry, was terminated on 20-3-1997 and ultimately by judgment dated 27-7-1998 the order of his termination was declared in flagrant violation of the principle of natural justice as a result of which the appeal was accepted with costs by setting aside the impugned order. Again reliance was placed on this Tribunal's judgment dated 19-6-1996 delivered in the case of Qoural Channa and 6 others v. PIAC vide which all the identical appeals were accepted.
8. In an identical situation the Honourable Supreme Court of Pakistan in the case reported as 1996 SCM R 413 has repelled the argument plea that appointment of the civil servants on temporary basis in violation of the rules could not be supported with respect to termination of the employees for the obvious reason that:
(i) the employees did not lack qualifications for the position; and
(ii) the irregularity, if any, was committed by the department in ' violation of the relevant procedure governing the appointment (in the instant case non- advertisement of the post right from 1978 up-to-date) and as such reinstatement of the civil servant (earlier reinstated by this Tribunal) could not be called in question and hence the petition for leave to appeal was dismissed and the leave refused.
9. It was also held by the Honourable Judges of the Supreme Court in 1990 SCMR 2330, besides other authorities, that the principles of natural justice are to be read as part and parcel of every statute and no action can be taken against any citizen without affording him an opportunity of showing cause about the proposed action being so taken specially when the appellants were admittedly confirmed in their status and appointments having undergone the probationary period.
10. Gone are the days when payment of pay and allowances was considered to be bounty of the State since enactment of the Service Laws laying down detailed provisions of the terms and conditions of civil servants and by now much water has gone under the bridge. It is an age of awareness wherein immediate reaction is made/taken to a good or mala fide step under the statutory provisions as required so much so that much case law has been developed due to dictums of the Honourable Supreme Court getting due legal cover under Articles 4, 25 and 189 of the Islamic Republic of Pakistan. Article 4 requires that all individuals/citizens are to be dealt with perfectly in accordance with law and not otherwise. Likewise all citizens are equal under Article 25 of the Constitution and sub-article (2) thereof abhors discrimination in all its manifestation whereas under Article 189 the case law so enunciated by the Supreme Court binding on all the Courts below throughout the mother country. The enactment of the various Service laws such as Civil Servants Act, Service Tribunals Act and the rules framed thereunder, governing terms and conditions of civil servants, have not been enacted/promulgated for the sake of fun. The Legislature had some definite aims and objectives while enacting these laws, inclusive of the establishment of the service Tribunals under Article 212 of the Constitution, and this was done just to fulfil the ideal dream of founding fore-fathers such as Dr. Sir Allama Muhammad lqbal, Quaid-e- Azam Muhammad Ali Jinnah and their stelwarts, companions and as a result of their selfless and continuous struggles/efforts; the dreams were ultimately materialized and appeared in the shape of establishment of the sacred land-Pakistan-wherein its citizens could live peacefully and honourably. Now it is for the rule and the ruled to take care of the mother land but of late, it appears that, the air has taken a different direction despite the fact that the founding fathers had laid a direction Unity, Faith and Discipline which is a lofty second Qibla specially for the Muslims besides the one located at Baitullah (Makkah Mukarrma) at Saudi Arabia.
11. The rule of law and fairness is natural and duly manifested in all aspects. The basic principles of justice have emanated from Allah almighty who wished to create viceroy on the earth but the angels stated they were doing all the things (praising and glorifying) as directed and Adam, if created, would commit riots, blood shed but Allah Almighty ordained that he Knows, angels Know not. Adam was created and all the angels were directed to bow down before him. All obeyed except Iblis (Satan) who boasted and refused and hence he was expelled from Heaven but before the completion of the act of his expulsion from Heaven down to the earth, lblis (Satan) entreated that he may be given lifq till the dooms day, his appeal was accepted by granting him life (respite) till dooms day. In this respect the verse (7:11 to 18) contained in Surah "Al-A' raf," (The Heights) are reproduced hereunder: {{ARABIC TEXT}} {{URDU TEXT}} {{URDU TEXT}}
11. And We created you then fashioned you. Then told the angels: Fall ye prostrate before Adam.
And they fell prostrate. All save Iblis, who was not of those who make prostration.
12. He said: What hindered thee that thou didst not fall prostrate when I bade thee? (Iblls) said; I am better than him. Thou createdst me offire while him Thou didst create of mud.
13. He said: Then go down hence! It is not for thee to show pride here, so go forth! Lo! Thou art of those degraded.
14. He said: Reprieve me till the day when they are raised (from the dead).
15. He said: Lo! Thou and of those reprieved.
16. He said: Now, Because Thou hast sent me stray, verily I shall lurk in ambush for them on Thy Right Path.
17. Then I shall come upon them from before them and from behind them and from their right hands and from their left hands, and Thou will not find most of them beholden (unto Thee).
18. He said: Go forth from hence, degraded, banished. As for such of them as follow thee surely I will fill hell with all of you.
12. It is further to add that Adam and Eve, when realized their mistake, beseeched Allah Almighty after having been repented and He, on acceptance of their prayer forgave them as is evident from the verses 7:22 to 7:24, contained in the said Surah "Al-A' raf" (The Heights) (Al-Qur'an) {{ARABIC TEXT}} {{ARABIC TEXT}} {{URDU TEXT}}
22. Thus did he lead them on with guile. And when they tasted of the tree, their shame was manifest to them and they began to hide (by heaping) on themselves some of the leaves of the Garden.
And their Lord called them, (saying): Did I not forbid you from that tree and tell you: Lo! Satan is an open enemy to you?
23. They said: Our Lord! We have wronged ourselves. If Thou forgive us not and have not mercy on us, surely we are of the lost!
24. He said: Go down (from hence), one of you a foe unto the other.
' There will be for you on earth a habitation and provision for a while.
' The principles of natural justice have also been discussed in light of the verses of Holy Qur'an in the cases reported as PLD 1981 SC (AJ&K) 47 and PLD 1987 SC 304.
13. It is known to all that Almighty Allah has conferred on Solomon kingdom and he was also gifted with the knowledge of understanding the languages of all the living creatures, inclusive of human beings, birds and Jinns and once when he sought the animals, he found hoopoe ( --') absent and ordered that he would punish him severely or would slain him if he failed to explain the reasons validly for his absence. The relevant verses (27:20 to 24) of Surah "Al- Naml" (The Ant) from Holy Qur'an read:{{URDU TEXT}} {{ARABIC TEXT}} {{URDU TEXT}} ' And he sought among the birds and said: How is it that I see not the hoopoe, or is he among the absent?
20. I verily will punish him with hard punishment or I verily will slay him, or he verily shall bring me a plain excuse.
21. But he was not long incoming, and he said: I have found out (a thing) that thou apprehendest not, and I come unto thee from Sheba with sure findings.
22. Lo! I found a woman ruling over them, and she hath been given (abundance) of all things, and hers is a mighty throne.
14. 1 found her and her people worshipping the sun instead of Allah; and Satan maketh their works fairsecming unto them, and debarreth them All it means that Allah. Almighty and solomon gave ample opportunities of show casue to iblis (Satan) and hoopoe ({{URDU TEXT}}) respectively before taking action against them and the principle of natural justice now being demonstrated in the mortal world, having the celestial foundation in' the Holy Book Al Qur'an but despite this the departmental authorities find themselves quite free all the limitation imposed upon them by the various enactments so much so 'that they exercise direction whimsically which action is not only warranted under the law but also violates the principles of audi altermam partem deeply embeded in the aforesaid injunctions of the Holy Qur'an, as referred to above, which is a fountain head tor all the times to come.
15. It is also considered advisable to give a reference to the observations of law Mr. M. R. Kayani, an ICS intellectual and a legal luminary (retired as Chief Justice, west Pakistan Province) holding good uptil now for all the departmental authorities. The same are:-- "All that we tell the governmental departments is that if you want to dismiss a man, dismiss him by all means, but let his funeral be attended, with proper formality. Give him a chance; give him a reasonable opportunity to defend himself and then do as you like. We don't interfere with the opinions of these officers, so long as they are based on some material. I must say that more often than not the High court is on the side of the goonda, the corrupt official, the inefficient official, but even the goonda is entitled to the protection of law. Recently we interfered in a case where an enquiry had been conducted in an atmosphere which could cause apprehension to the accused officer that the enquiring officer might be influenced by his superior. What we want is that every body should have a feeling of security, a feeling that nothing will be done to him in bad faith or capriciously or arbitrarily:--
(i) If you ask me, the writ jurisdiction brings to a benighted mortality the light that never was on sea or land. God is in His Heaven and all's right with the world, God was in His Heaven even before the writ jurisdiction, but all wasn't right with the world Consequently, if you are spiritually inclined, you can say that the writ jurisdiction is the modern manifestation of God's pleasure, and that God's pleasure dwells in the High Court. You can say that it dwells in the heart of Judges and the Judges are a manifestation of God's pleasure: I don't mind if you elevate them thus that idea seems to have existed long ago, when a person who became a Judge was said to have been elevated to the Bench.
(ii) There was a doctrine about the pleasure of the sovereign, now substituted by the pleasure of the State. This will in due course be undermined by the pleasure of God, for sovereignty belongs to Allah, and by this I mean no more than that things should be done in accordance with the principles of natural justice.
(iii) Gentlemen, my effort is to elevate the writ jurisdiction to a height where praise or blame does not reach it, and for that reason also I am anxious that the Judges should not be praised too much, so that they do not become sensitive to blame. It is unfortunate that whatever decision we take against the Government makes us popular, and it is therefore necessary that we should not seek Cheap popularity, as when we set free a slinking devil who cuts a Government with the sharp tongue of malice. Nor do we approve of resort to this jurisdiction in every little case where a remedy lies in the ordinary court. The former Chief Justice (Sir Abdur Rashid) of Pakistan was humorously complaining the other day that two' of his servants were quarrelling and making nose and that when he asked them to be quiet, either one or both of them threatened to bring a writ from the High Court. For all citizens are equal before the law and can make equal noise.
' At no distant date we are expecting to be called upon to regulate the conjugal relations of husband and wife. We might ask the wife not to attend too many APWA parties, in order that the husband should not go astray. We might ask the husband not to devote too much time to intellectual studies, in order that the wife should not go astray. We might ask both not to attend Horse and Cattle shows and police tattoos in order that the children should not go astray." (Not the whole Truth by Mr. M.R. Kayani, pages 43 to 45).
' In this respect we would like to advice the departmental authorities to work in accordance with law so that their subordinates should not go astray and work in the public interest.
16. Reliance was also placed on the cases reported as:
(i) PLD 1965 SC 90;
(ii) 1994 SCM R 2232 (Anisa Rehman's case);
(iii) 1997 SCM R 1543;
(iv) 1997 PLC (CS) (Lahore) 1146; &
(v) 1997 PLC (CS) (Kar) 1014.
17. No doubt the appellants were terminated and thereafter they filed writ petitions before the Honourable Lahore High Court, Rawalpindi Bench, Rawalpindi, which was pleased to suspend operation of the impugned orders and ultimately the writ petitions were withdrawn by order dated 26-8-1998 and thereafter the present service appeals were filed within thirty days from the date of withdrawal of the writ petitions. The appeals are thus well within time but in case if there is any delay, we have condoned the same in the interest of justice.
18. Pursuant to the aforesaid discussion we accept all the appeals, set aside the impugned orders with the direction that all the appellants shall be reinstated in service with all back benefits. There shall be no order as to costs. Copies of this judgment shall be sent to all the concerned for information and further necessary action.